Law, Politics, and Symbolism in the Muslim Ban

For those who have slept through the past week, here’s the state of play: On Friday, January 27, 2017, President Trump issued an Executive Order for the proclaimed purpose of “Protecting the Nation from Foreign Terrorist Entry into the United States.” Among other things, the Order imposed a 90-day travel ban on citizens coming into the United States from seven predominately Muslim countries: Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen. It also indefinitely prohibited Syrian refugees from entering the United States. And it included a safety valve that allowed immigration officials to admit, among others, “a religious minority” living in one of the seven countries who was “facing religious persecution.” Unsurprisingly, the Order quickly became known as “the Muslim Ban.”

Legal challenges immediately followed, and within days, federal judges across the country had blocked some parts of the Order in at least some parts of the country. Last Friday, however, in a case brought by the States of Washington and Minnesota, a federal judge in Seattle issued a nationwide injunction that temporarily blocked most of the Order, including the immigration bans. The Justice Department promptly filed an emergency request to stay the district court order pending appeal to the Ninth Circuit. The appellate court denied the request the next day (Sunday, February 5), but ordered the States to file their response to the emergency motion by Sunday at 11:59pm, PST, and for the federal government to file its reply by Monday, February 6, at 3:00pm PST.

The legal issues in this case are complex. On the one hand, the Order relies on another federal statute, which gives the president broad power to “suspend the entry of all aliens or class of aliens” if he believes their entry “would be detrimental to the interests of the United States.” As The Los Angeles Timespointed out, presidents have not hesitated to use this power, and no one used it more often than President Obama. On the other hand, no president has ever invoked it as broadly as President Trump. In addition, the preference in the Order for people who are “a religious minority” in one of the seven countries—a thinly veiled reference to Christians—may violate the Establishment Clause, which prohibits the federal government from giving preference to one religion over another.

I do not ordinarily linger on the particulars of legal disputes, and certainly not on the details of judicial filing deadlines, but do so here to make plain that the Executive Order attracted intense and widespread judicial attention and will almost certainly make its way to the Supreme Court very soon. From this, some may be tempted to think the issue raised by the Order is fundamentally legal in nature. They may believe, in other words, that the relevant question is whether President Trump broke the law, and believe a determination to that effect will somehow “settle” the question. But they would be mistaken. In this case, as in so many cases where contentious national issues make their way to the courts, the law merely provides a stage for political battles. At least in contentious national issues, law is simply politics by other means.

If we think about the real work that the Trump Executive Order does in American life, it becomes clear that its principal contribution is symbolic, not legal. To Trump’s many supporters, the Order represents an heroic determination to defend the United States, and especially its besieged values and institutions, from the widespread and existential threat of Muslim extremism (and no doubt many of his supporters view “Muslim extremism” as redundant), and to stand firm against a reckless and misguided liberal establishment. The Order is representative of a particular vision of American life, a vision that prioritizes white, Christian dominance in national and international affairs. To them, Trump is a hero, and the Order shows them why.

Because the Order plays this symbolic role, its obvious overbreadth is completely irrelevant. For instance, though the Order is styled as a protection from “foreign terrorists” and repeatedly invokes the attacks of September 11, the fact is that no foreign national from any of the seven countries targeted by Trump’s Order has been responsible for any terrorist deaths in the United States over the past four decades—at least, that is the conclusion of a careful analysis or the data by the CATO institute. None of the 9/11 attackers were from the targeted countries. The CATO institute calculated that the chance an American would be killed in a terrorist attack committed by a refugee to be 1 in 3.64 billion. But to Trump’s supporters, this is all unintelligible gibberish—the “wahn wahn” of off-screen adults in every Charlie Brown special.

On the other hand, to Trump’s many detractors, the Order represents a dire threat to the United States, and especially its values and institutions, from a reckless and bigoted buffoon who inflames ethnic and racial animosity because he opposes religious, racial, and demographic diversity. For them, the Order is representative of a particular vision of American life that denigrates minorities, women, people of color, and any representatives of the numerous groups Trump insulted and mocked throughout the campaign. To them, Trump is a demon, and the Order shows them why.

And because the Order plays this symbolic role, its possible legality is irrelevant. Indeed, the same day the district judge in Seattle granted his nationwide injunction, another judge in Boston issued a carefully reasoned opinion that upheld the order. But unlike the decision from Seattle, the decision from Boston has attracted far less attention. (I stress that I am making no predictions about which legal position will prevail, let alone which is “correct.” Indeed, the whole point of this column is that questions like that are largely beside the point). Instead, my contention is simply that most of the media, like most of the intellectuals in the United States (including me), loathed candidate Trump and give considerably more attention to a decision against the Order than a decision for it.

It is hard to view the law as symbolic and political. It is not how we have been taught. But the most important question about the Executive Order has nothing to do with whether it is “legal.” The Order is part of an extended political theater. The lines of the Order, like the lines in a play, acquire meaning principally through their conversion into symbols of a particular narrative. Like almost everything Trump does or will do throughout his term in office, the Order is a symbol that will be used to mobilize support for competing narratives about American life. What matters is which narrative prevails and not which side has the better view of the law.

Joseph Margulies is a Professor of Law and Government at Cornell University. He is the author of What Changed When Everything Changed: 9/11 and the Making of National Identity (Yale 2013), and is also counsel for Abu Zubaydah, for whose interrogation the torture memo was written.